Protection of Trade Secret in Talent Flow

In the recent years, the increasing cases of trade secret infringement due to talent flow cover a large proportion of trade secret cases heard by the people’s courts, which prominently focus on (1) serving staff violating duty of loyalty and infringing company’s trade secret by means of part-time job; and (2) key positions ex-serving staff providing services to competitors or participating in their own business that competes with the ex-employer. This article aims to discuss the issue of trade secret protection in talent flow.

 1)The Consideration and Term of Confidentiality Duty

Confidentiality duty, which is derived from the duty of loyalty, is the main obligation to employees in employment relation. Employers, strictly, are not supposed to compensate employees for their assuming the duty; however, provided confidentiality fee has been stipulated between the employer and employee, compensation shall be paid under the agreement. Employers shall not use lack of such legal obligation as defense.

Besides, we often see the term of period of confidentiality duty, such as employers are subject to confidentiality duty for two years following termination of employment in legal practice. Such agreement, however, in our opinion is not very appropriate. On one hand, confidentiality duty is a main obligation to employee in employment relation, which still lasts even though employment relationship has been terminated. Confidentiality duty period, to some extent, makes a limitation to the right of employer. On the other hand, since trade secret is deemed as employer’s property before it enters into the public realm, employee, as counterparty, has no right to infringe or disclose. Hence, the agreement on period of confidentiality duty shall be revised.

comment recruter en Chine

2) Proof of Trade Secret Infringement

 

The trial principle of trade secret infringement cases, in many parties’ opinions, is “similarity (or identical) + contact – legal source”. The defendant is supposed to bear the burden of proof as to the fact of “legal source” as long as the facts of the defendant are similar or identical and the counterparty has access to the trade secrets at his convenience have been proved. If the counterparty cannot prove the “legal source”, the counterparty shall be liable to infringement.

The aforesaid analysis, however, is not in compliance with the Interpretation of the Supreme People’s Court on Certain Issues Concerning the Application of Law in the Trial of Civil Cases Involving Unfair Competition. Pursuant to Article 14 of it, where a party alleges that another infringes its trade secret, the party shall bear the burden of proof as to the fact that the trade secret it has possessed is in conformity to the statutory requirements, that the other party’s information is identical or substantially identical to its trade secret, and that the other party has adopted unfair means. The evidence showing that the trade secret conforms to the statutory conditions shall include the carrier, specific content, and business value of the trade secret, and the specific confidentiality measures taken for the trade secret.

Therefore, the party shall bear the burden of proof as to the facts as below prior to requiring the counterparty to prove “legal source”, or it seems to require the counterparty to prove his own innocence that is against the principle of civil law.

(1) Proving that they are the legitimate holders of trade secrets; and

(2) The other party has adopted unfair means.

3) Identification and Protection of Customer List

 

Customer list is one of the most common and important trade secrets to all corporations. Unfortunately, not all the customer lists are deemed to as protected trade secrets. In compliance with Article 13 of the Interpretation of the Supreme People’s Court on Certain Issues Concerning the Application of Law in the Trial of Civil Cases Involving Unfair Competition, the customer list that is a trade secret shall generally refer to special customer data that is different from relevant public information, such as the names, addresses, contact information, habits, intentions, and contents of transaction of the clients, etc. It includes a customer list with the names of many customers /clients, and specific customers/clients with whom a long-term stable trade relationship has been established. Hence, only the compile of the contact information of customers cannot constitute the customer list protected by the Interpretation. In summary, the undisclosed habits and contents of transaction, except the names and contact information of corporations which can be obtained publicly, are the substantial contents of a protected customer list.

INS, headhunter in wine field in China

In order to find talent in the wine field, call a professional.

The wine market in China is a growing market. Indeed, the Chinese middle class grows and consumes more and more wine. Since 2013, the Chinese people are the largest consumers of red wine. It makes sense for a winery to launch its business into this growing market. To expand its business on the Chinese market, it must initially be well surrounded.

INS finds talents for its clients, especially in the wine fields. INS has been accompanying wine companies for years in their establishment and recruitment on the Chinese market.

What is Headhunters Company?

Headhunting

The role of a headhunter is to look for talented executives, whether they work or not. The headhunter has to be persuasive to demonstrate these talents that a better paid and more interesting job is within their reach.

To succeed in launching a business on the Chinese market, it is essential to choose the right team. The choice of the salesmen and the team determines the success or failure of a company on the Chinese market. Recruitment is a full-time job. By using a headhunter firm, an entrepreneur ensures a good recruitment and puts the odds on his side to develop its business on the Chinese market.

 

INS: a headhunter company with a good knowledge of the wine market in China

INS has been accompanying many clients in the wine fields for years. In consequence, it has a good knowledge of the wine market in China, but also has a good network in this area.

INS meets the requirements of the client and analyses its business to define the right profile. Once the profile is defined, INS uses different sources to find this talent: existing network (databases), social networking, professional blogs, schools networks of former students, etc.

INS has a good knowledge of the wine market in China and many customers in this area; therefore INS has a consistent database and a consultant’s network in the wine field. The research of the previously defined profile will be accelerated.

Five qualities are necessary for a salesman to succeed on the Chinese wine market: sell a good product for the market, have a good network, have energy and a strong liver. The company also can’t waste time on the administrative; it needs to have support of a French entity and a Chinese entity. INS offers its customers candidates who have these qualities and also offers its clients the necessary services, such as the services of an umbrella company in order to facilitate their presence on the Chinese market.

 

Why INS Global Consulting?

ins GLOBAL consulting team

INS has been helping its customers for more than eight years. Its manager Wei Hsu and the team help their customers by adapting to their needs and constraints of each one of them. INS has already helped many companies in the wine fields, such as Le bureau interprofessionnel des vins de Bourgogne, la maison Sichel, Domaines Lapalu and many others.

This experience in the wine field allows INS to be efficient and to better assist its clients in recruiting and launching business into the Chinese market.

If you want more information or to call the services of INS Global Consulting, contact us by email to: weihsu@ins-globalconsulting.com or visit the “Contact” section of our website.

You can also contact INS Global Consulting customers to get a confirmation of the quality of services provided by INS.

For more information on recruitment in the field of wine in China and INS Global Consulting:

INS, working visa agency in China

 

Being accompanied by a professional to facilitate the obtaining of a working visa.

A major concern of companies and future workers in China is the obtaining of the working visa. Indeed, the rules for obtaining the visa and the necessary steps to obtain it may seem blurred. To be accompanied by a professional in the process of applying for a working visa is an effective solution that allows saving time and increases the chances of getting this working visa.

Who is the working visa for?

Chinese Visa

This working visa is for “foreigners and members of their families accompanying them to come to work or hold a position in China, in order to give performances of a commercial nature or participate in assistance projects and cooperation.”

The latest regulations on visas

New regulations on visas were created in 2013, new types of visas have emerged, and some have just been revised.

For all visas, here are the necessary documents:

  • Passport with two blank pages of any entry, which must be valid at least six months from the day of application.
  • A completed visa application Form (available on the website of the Chinese Embassy) with a photo ID (in color).
  • The “Record of medical examinations for foreigners” if more than six months stay.
  • The family members who accompany the employee aged over 18 must provide a medical certificate from an accredited hospital.

Other prerequisites are also required for a working visa application:

The employer must be authorized to recruit employees and foreign employees.

Foreigners must fulfill the requirements and the employer must obtain a certificate proving its implementation rule. This certificate proving this rule set is called a “working permit”, it is also subject to certain conditions, including: the applicant must be a holder of at least a Bachelor’s degree and at least two years working experience.

Finally, depending on the area of ​​activity, other documents may be required, especially for foreign personnel of foreign cultural centers, foreigners who come to China for volunteer work or foreigners coming to work in oil drilling at sea.

Why being accompanied by INS Global Consulting to obtain the working visa?

These long administrative procedures to obtain a work visa can be confusing for a new company on the Chinese market or even for a well established company. To be accompanied by a professional will help provide the right documents, save time, and thus increase the chances of getting the working visa.

Companies must still be careful when choosing the services of a consulting company. In China there are many companies who obtain work visas for their clients illegally. Penalties for possession of fraudulent papers are expensive. Therefore check the seriousness of the company who will help you get a visa.

INS Global Consulting is a serious company that lawfully obtains working visas for its clients and visas for accompanying families. Customers are satisfied and the obtaining of working visas is done properly. This business has over eight years experience and offers its customers, both new companies on the Chinese market or established companies, individual services and helps its clients to apply for working visas.

If you would like more information about obtaining a work visa or use the services of INS Global Consulting, contact us by email to: weihsu@ins-globalconsulting.com or go under ‘Contact “section of our site.

visa cancellation China

For more information on working visas in China and INS Global Consulting:

Ready to be successful on the Chinese market?

Comparing the limited companies or the umbrella companies ?

To invest outside its border usually involves cost and loss of time. However, it is possible to minimize the expenses and waste of time by choosing a limited company or an umbrella company. However you should be aware of the differences between the two before making a choice. It should select the best fit for activity because once it has started, there is no turning back. Being advised to know well your field and create a network before get in the adventure.

We know all that working in China is a challenge for entrepreneurs.

We may face some difficulties at the beginning, especially the accommodation once there, the language barrier, and also the fact of being a new and unknown environment.

So, to achieve easily in the beginning, you need to have a team who was been there for a long time, showing you what must be done and when.

Levies once in China

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In first time, once installed, the entrepreneurs always are facing to the biggest problem which is making choice about the tax system adopted. At that point, the error at the risk of ruining and having legal problems with Chinese authorities is not permitted because everything must be analyzed carefully according to the Chinese laws.

Since Chinese laws is very complex because China is a country with provincial governments, each government has its own laws, so we need to be aware about the laws of the government that administers the city in which your business will be installed.

Problem with English limited companies

To invest in China, far away avoid administrating through an English company with limited liability (PDF). It is not recommended for one contractor because it will create more administrative problems outside of some difficulties that the business will confront during the installation.

With its administrative system, China does not make an easy life for a single businessman newly in the market. There is nothing more beautiful than having our own company which all management is performing by our self, but we must be aware that a lot of things have to be done together lest one may lose customer.As a consequence doing everything by yourself is a nearly impossible task.However you can change that by outsourcing certain activities of your business on team more competent.

Establish an LLC in China?

Ldt is a company with main feature to limit the liability of the members; and the amount of the share capital is freely determined by the partners according to the size, activity, and capital requirements of the company. In China, a little different from the French company law, limited liability company must be formed by at least two members and less than fifty.

An LLC may be the solution, otherwise, entrepreneurs wishing to launch with it should be submitted under certain numbers of regulations.

These regulations in China are numerous and do not match, most of the time, to the activities, and which will jeopardize the entire project.

The umbrella company

An Umbrella company that have been founded with enough staffs to handle tedious companies tasks such as paperwork handling or recruitment in a market you know nothing about

One available option, that is proved to be the most effective and reliable, is to solicit services to Umbrella Company. With this type of company, there is no question losing the head with a long administrative procedures, a professional team will handle this task for you.

Umbrella-China

Even though the initial cost may be higher, the return on investment is quicker. Why is that? Because the Umbrella company services allow you to have more time to focus on your core business activities and not on 2 to 3 days lost to  paperwork every week.

INS is one of the most experienced umbrella companies in China. It supports and advises any company wishing to focus their activities in China. INS Global Consulting will handle all paperwork in order for the contractor to move with confidence in China.

Further reading

  • To know more about INS Global Consulting services go here
  • To know more about Umbrella company go here

How was the notion of PEO Services developed?

Late 80s, a new form of wage labour is emerging in the working world: The Professional Employer Organization (PEO) Services. Originally an association of unemployed managers having difficulties to get hired and willing to offer consulting services to businesses and keeping the status of employees at the same time. In the early 2000s, the principle of PEO Services grew and became more professional with the creation of specialized companies.

In a relatively new market under construction, various stakeholders come together to organize the profession and create a union and a federation.

Rising


The rise of PEO Services

The concept of PEO appeared for the first time in 1988 through the association of former HEC (High Business Studies in French)and AVARAP members. The AVARAP is an association whose mission is to assist manager job seekers in their search. Initially, the concept was only for seniors, because of their expertise and advice they could provide to businesses.But over time, the profiles have diversified.

It was between 1990 and 2000 asPEO did develop and started to defray the administrative aspect of missions carried (billing,payroll,etc …)and subscribed to all agencies of social security contributions.

In 1998, the first union connected to PEO Services was born: the SNePS (National Union of PEO). This union will enable the creation and spread of company agreements. However, the first agreement was only signed in 2007, by the main social partners. For employers, two organizations then emerge: the FeNPS (National Federation of PEO Services) and UNEPS (National Union of PEO).

As a relatively new concept in France, it appears that PEO services have existed for some time in Britain under the name of “Umbrella Companies”. Their role: to be an intermediary between a consultant providing benefits and a company looking to satisfy a need. It is a system that allows, among other things, to promote the re-employment of unemployed managers and the creation of new activities.
Today there areover10,000consultants who have joined more than forty umbrella companies serving more than 35,000 businesses.

The Concept

PEO Services connect three actors: the customer, which can be a company, a government, a local authority or association, whether in France or abroad, the consultant, who is an expert or a trainer in one or more areas and the umbrella company, the PEO.

The idea is for a company to benefit from skills it does not use generally but only at a given time.

The Enterprise then uses a consultant for a specific task. This one does not wish to take advantage of self-employment; he is therefore connected to a PEO by which he is employed. When the task is given to the consultant (who approaches his own clients, regardless of the umbrella company), the client will then enter into relationship with the umbrella company to establish the terms of engagement and fees.

The PEO takes care of all the administrative, social and fiscal obligations. It receives the fees, is responsible for the payment of social security contributions, deducts its commission and pays the consultant a salary for his job.

This form of work is generally found in the areas of audit, consulting, expertise, training (service missions).

Umbrella company

Advantages of PEO Services

The advantages of PEO Services are many. First, the fact of using an umbrella company avoids to the self-employed the need to create its own legal structure. This allows him to focus on his job without having to worry about all the paperwork, which is done by the umbrella company. This then facilitates the management of its business and a huge time saving for the Independent.

An Umbrella company also allows the independent to better manage cash flow. Even if the customer does not meet the terms of payment, the independent still receive all or part of his salary regularly.

By using an umbrella company, the Independent also accesses the employee status and all the benefits associated with it: unemployment, retirement, social security and pensions. Therefore, PEO allows some job security. This status also allows the independent to have a registration number of the business, a pension scheme and a professional liability insurance.

INS Global Consulting, through its eight years of experience in consulting will be your PEO, and therefore will provide your consultants functional ready-to-use offices, will declare them to Chinese authorities, forward each month to the tax office their tax statement and provide them legally and without delay a working visa and a residence permit.

For more information please do not hesitate to contact us .

See also:

Go with the PEO INS to solve your paperwork problems in China

Why it pays to go with INS.

 

There’s more to managing small business payroll than writing checks and handing them out to employees on time. You need to keep accurate records, calculate and pay payroll taxes, and communicate effectively with employees. Many small business owners are finding that they can simplify the process by using an outsourced payroll provider to manage the entire process cost-effectively and efficiently. This is where INS Global Consulting plays its part! We are company specialized in PEO (Professional Employer Organization) Services, outsourcing and HR management in China.

contrat-de-travail-id6861

Outsourcing your payroll with INS can provide your small business with a number of important benefits:

Save time

Using an outsourced payroll solution is typically more efficient for a small business than processing payroll internally. Leaving payroll to experts frees up hours that you can devote to other important parts of your business. Whether it is your time, staff time, or a combination, chances are the hours could be better spent winning more business, improving customer service, fine-tuning business operations or launching a new product line. Among the areas where outsourcing will save time are:

  • Processing payroll
  • Cutting and distributing paychecks
  • Calculating and paying withholding and employment taxes
  • Handling employee payroll inquiries

Save money

Many business owners underestimate the cost of processing payroll internally by failing to account for all hours spent and resources allocated to pay employees and maintain payroll paperwork. A thorough cost assessment usually proves that a small business saves money by outsourcing the processing, tracking and filing of payroll documents. To assess your own internal payroll costs, consider:

  • How much the time spent is actually worth: consider the cost of your time and the time of anyone who processes or “touches” payroll. Often, many people in a small company are involved in the various parts of payroll processing.
  • What savings would outsourcing provide: since an outside provider can handle all the responsibilities involved in managing payroll and answering employee questions, a small business can often eliminate or reallocate an internal payroll resource.

Avoid penalties

Calculating federal, state, and local employment taxes and filing payroll-related tax paperwork can be more than just a hassle. If it’s done incorrectly, your small business may face penalties and even interest on money owed since the mistake was made. In fact, it is estimated that one in three small businesses receive a tax penalty costing over $800 each year. Outsourcing payroll does away with the risk of many of these costs and hassles because:

  • An outsourced payroll provider calculates payroll taxes, based on its expertise and close tracking of regulation changes
  • Monthly or quarterly employment tax reports are managed by the payroll service, ensuring they are submitted correctly and on time
  • Payroll providers may assume penalties that come as a result of incorrect tax calculations

The case of China

Doing business in China is all but an easy task and one major issue will be payroll in China. If you’re incorporated locally, you need to ensure that your local entity is legally capable of running a payroll. Even if you are considering local incorporation in the future, a local payroll provider reduces your liability in the interim. Further, a management company accomplishes all of the same payroll responsibilities, alongside numerous other specialist services that reduce your liability even more.

Local payroll in China

 Your employee will need to get paid in China, but establishing a local payroll can be extremely difficult. Even if you already have a local company, you need to confirm that it’s appropriately registered to run a payroll, and to file and deduct taxes. This requires sufficient administrative staff that is up-to-date on all tax requirements in China.

Setting up a payroll in China

 To set up a local payroll, your company will need to incorporate in China. This will be another issue necessitating extensive research; how long will incorporation take for your company, and how much will it cost? Depending on your budget and time frame, a temporary project may not justify local incorporation. In that case, it’s more efficient to outsource the administration to a local payroll provider.

Even if you plan on incorporating locally, using a payroll provider can present an extra security measure while you complete the process. This enables you to second employees onto a work site immediately, without exposing your company to unnecessary risk.

INS TEAM

If you want to find a payroll outsourcing company, INS Global Consulting, with its 8 years of experience within the Chinese market is there for you. Based in Shanghai, we are the leaders when it comes to PEO and outsourcing services. We provide top notch services in order for you to put your mind at ease while you are setting up your business in Shanghai or anywhere else in China!

For more information Feel free to contact us by mail

See also:

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